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Can the International Criminal Court DeterAtrocity?Hyeran Jo and Beth A. Simmons
Abstract Whether and how violence can be controlled to spare innocent lives is acentral issue in international relations. The most ambitious effort to date has been theInternational Criminal Court (ICC), designed to enhance security and safety by prevent-ing egregious human rights abuses and deterring international crimes. We offer the firstsystematic assessment of the ICC’s deterrent effects for both state and nonstate actors.Although no institution can deter all actors, the ICC can deter some governments andthose rebel groups that seek legitimacy. We find support for this conditional impactof the ICC cross-nationally. Our work has implications for the study of internationalrelations and institutions, and supports the violence-reducing role of pursuing justicein international affairs.
One of the most important questions in international policy and research is whetherjustice is possible in a system dominated by self-regarding sovereign states. TheInternational Criminal Court (ICC) provides a challenging opportunity to probe thepossibilities for international law to reduce human suffering in inter- and intrastateconflict. The court has jurisdiction in a domain where military and strategic logic gen-erally prevails, though it does not have its own police force and must instead rely ondomestic law enforcement or third parties to arrest people charged with crimes underits jurisdiction. The ICC’s task is inherently difficult: it can prosecute state agents,including heads of state, as well as nonstate actors such as rebel group leadersover whom international institutions traditionally have scant authority. Its goals areambitious: the attainment of peace and security, as well as justice for those whocommit atrocities. Is the court contributing to achieving these goals, as its originaldrafters envisioned? In particular, under what conditions can the ICC reduce egre-gious human rights violations against civilians?
We thank Erin Baggott, Robert Bates, Muhammet Bas, Tyson Belanger, Kara Ross Camarena, TerrenceChapman, Stephen Chaudoin, Nisha Fazal, Richard Frank, Julia Gray, Dana Higgins, Nahomi Ichino, AkosLada, Christopher Lucas, Susanne Mueller, Sarah Nouwen, Steven Ratner, Shahrazad Sabet, Anne Sartori,Hans Peter Schmitz, Kathryn Sikkink, Jack Snyder, Dustin Tingley, John Vasquez, Leslie Vinjamuri, PeterVolberding, Andrew Wojtanik, and Kate Cronin-Furman for helpful comments. Thanks to Kate Bryant,Dillon Lucas, Dennis Ojogho, Mitch Radtke, and Wendy Wang for their research assistance. Part ofHyeran Jo’s research effort was funded by the National Science Foundation (SES #1260218). Any opin-ions, findings, conclusions, or recommendations are those of the author and do not necessarily reflectthe views of the agency.
International Organization 70, Summer 2016, pp. 443–475© The IO Foundation, 2016 doi:10.1017/S0020818316000114
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The question of the ICC’s impact is important because the court has the authority toenforce international law against those who commit the most serious and systematiccrimes. We examine the ICC’s ability to deter one of the most dastardly internationalcrimes: the widespread and intentional killing of civilians in states that have experi-enced civil wars in their recent past. We take a broad view of deterrence and explicateboth its prosecutorial as well as social dimensions. Prosecutorial deterrence is adirect consequence of legal punishment: it holds when potential perpetratorsreduce or avoid law-breaking for fear of being tried and officially punished. Socialdeterrence is a consequence of the broader social milieu in which actors operate: itoccurs when potential perpetrators calculate the informal consequences of law-breaking.A judicial institution is at its most powerful when prosecutorial and social deter-
rence reinforce one another, which happens when actors threaten to impose extra-legal costs for noncompliance with legal authority. Recognizing this complementaryrelationship between formal prosecution and informal compliance pressures, weargue that the ICC’s influence may go well beyond the common assertion that the in-stitution has no teeth. There are multiple mechanisms—legal and social, internationaland domestic—associated with the ICC’s authority that can potentially deter law vio-lation in countries prone to civil violence.At the same time, we acknowledge what few would have doubted: the ICC’s con-
tribution to deterrence is conditional. On average, it has stronger positive effects ongovernments than on rebels. We also acknowledge that the ICC has so far had littleeffect in some countries where it has intervened with indictments (Sudan and Libya,for example), but in other cases, ICC jurisdiction has mobilized domestic actors andstimulated important domestic reforms (weak yet notable improvements can be seenin Uganda, Kenya, and Côte d’Ivoire, for example). Overall, our results contrast withthe predictions of those who view the ICC as a worthless institution—or worse.
Research on the Effects of the ICC
There are many standards by which international criminal justice institutions such asthe ICC can be judged. They may be evaluated based on their contribution to justice,1
on their normative value,2 on their capacity to offer societal “atonement,”3 and ontheir legitimacy in the eyes of local victims.4 As a “renewed commitment to inter-national idealism,”5 the ICC almost by definition raises hopes and expectations beyondanything we have seen since the Nuremburg and Tokyo trials. Yet its critics are rife.Some view it as incapable of calibrating threats and rewards to coerce an end to
1. Goodman and Jinks 2003.2. Bass 2003.3. Bikundo 2012.4. Clark 2011.5. Goldsmith and Krasner 2003, 48.
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wartime atrocities.6 Others see it as an institution whose success is regularly frustratedby local and regional politics.7
Some of the most heated debates over the ICC relate to the effect it may have on thedynamics of peacemaking. For example, Snyder and Vinjamuri argue that internationalprosecutions can discourage pragmatic bargaining between warring parties and blockthe use of amnesty that could usher in peace.8 Similarly, Goldsmith and Krasner warnthat “the ICC could initiate prosecutions that aggravate bloody political conflicts andprolong political instability in the affected regions.”9 Practically no systematic evidencehas been produced to date to support such concerns. In fact, other studies have found sug-gestive evidence that a government’s ratification of the ICC tends to be correlated with apause in civil war hostilities10 or reduction in human rights violations.11 Sikkink’s re-search on domestic trials suggests that prosecutions have been associated with humanrights improvements. Certainly, the history of impunity has hardly racked up a stunningrecord for peace.12 Theremaybe some cases inwhich the unreasonable insistence onpros-ecution could be antithetical to themore practical idea ofmaking deals and compromisingwith atrocity offenders, and we do not deny that carefully calibrated amnesties may insome circumstances support peace processes,13 but as a general matter there is little evi-dence to suggest the peace versus justice tradeoff is anything other than a false dichotomy.A related but distinct issue is whether the ICC can deter the specific crimes it is
designed to address. After all, the ICC does not outlaw war; it outlaws specific vio-lations of the laws of war, those “limited to the most serious crimes of concern to theinternational community as a whole” including genocide, crimes against humanity,and war crimes.14 Does the ICC deter such crimes by raising the risk of punishmentfor the worst offenses? Again, skeptics abound. Goldsmith and Krasner assert flatlythat to think the ICC may saves lives “is wishful thinking.”15 Ku and Nzelibe arguethat ICC deterrence is undercut because it depends on states’ willingness to cooperateand cannot impose the death penalty.16 Cronin-Furman similarly concludes that theabsence of severe punishment and low probability of capture makes the ICC deterrenteffect weak.17 Fish calls the ICC’s deterrent effect “weak”18 and “speculative”19
while Ainley calls it “as yet unproven.”20 Specialists in criminal justice point out
6. Mendeloff 2014.7. Mueller 2014.8. Snyder and Vinjamuri 2003.9. Goldsmith and Krasner 2003, 55.
10. Simmons and Danner 2010.11. Mitchell and Powell 2011.12. Sikkink 2011.13. Lessa and Payne 2012.14. Rome Statute, Article 5(1) (a-c).15. Goldsmith and Krasner 2003, 55.16. Ku and Nzelibe 2006.17. Cronin-Furman 2013.18. Fish 2010, 1708.19. Ibid., 1709.20. Ainley 2011, 309.
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that the ICC does not have the resources to make punishment a real risk.21 We wouldsimply point out the inconsistency among some of the ICC’s most ardent critics: it isodd to argue that the court’s weakness renders it unable to deter crime, and yet toclaim that the court exacerbates conflict by (credibly, apparently) threatening topunish perpetrators, who are thereby supposedly incentivized to elude justice andcontinue fighting.Our investigation avoids generalized claims and instead advances conditional argu-
ments about ICC deterrence, flowing both from its formal authority to prosecuteand its focal power as a socially relevant justice institution. We are careful to craftarguments conditional on who is expected to be deterred. We argue first that ICC juris-diction increases the risk of prosecution compared with impunity, and that this candeter some individuals from committing crimes, especially when the ICC signals itswill and capacity to prosecute. But acknowledging the uncertainty of being tried andpunished, we argue that the ICC is more likely to deter actors when they are sensitiveto social pressure. Actors who are concerned with their legitimacy in the eyes ofdomestic publics and/or the international community are much more likely to bedeterred by the possibility of ICC prosecution than those who are not.
A Theory of the ICC’s Conditional Impact
How can an international institution with broad legal authority to enforce the law, butonly limited material capacity, influence the course of civil war violence? We specifytwo broad channels of deterrence: prosecutorial deterrence and social deterrence.Prosecutorial deterrence works via anticipated legalized, court-ordered punishment.Social deterrence results from extra-legal social costs associated with law violation.Both of these channels can be accommodated in a framework that views the propen-sity to commit a crime as a function of the likelihood of getting caught and the cost ofpunishment, broadly understood.22 This framework assumes, of course, that potentialperpetrators are aware of and can weigh risks, costs, and benefits and update their as-sessments over time.
Prosecutorial Deterrence
Prosecutorial deterrence refers to the omission of a criminal act out of fear of sanc-tions resulting from legal prosecution. People are increasingly likely to be deterredfrom violating the law when the chances and severity of a legal sanction, such as afine, incarceration, or capital punishment, increases. As such, law violation is a func-tion of prosecution and sentencing; as the risk of more severe penalties is perceived to
21. See Rodman 2008; and Mullins and Rothe 2010.22. Becker 1968.
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increase, the likelihood that an individual will commit a crime is reduced and thecrime rate falls (holding any “utility” resulting from the violation constant).For decades, the criminal deterrence literature has debated the question of exactly
which elements of this rationalist model account for the deterrence of criminal behav-ior. The idea that severity of punishment largely drives deterrence23 fueled the movetoward harsher sentencing in the United States in the 1980s. However, a growing con-sensus in the deterrence literature suggests that the swiftness and especially the likeli-hood of punishment may more effectively deter crime than severity of punishment.24
Empirical researchers employing surveys, experiments, and scenarios also concludethat the likelihood of punishment is key for deterring crimes ranging from taxevasion to theft to sexual assault.25 Observational studies often find that measuresthat raise the risk of apprehension, such as increased policing26 or the greater presenceof cell phones27 reduce crime.Although the criminology literature is exceptionally thin in parts of the world
where ICC jurisdiction currently looms large, many of the same themes arecommon. A large study affiliated with the World Bank based on developing countriesfound that higher conviction rates tended to reduce crime, even while controlling forthe death penalty.28 Major texts on criminal deterrence in Africa agree that the key tocrime control in most contexts in Africa is not the severity of punishment, but its like-lihood.29 A growing literature on the role of courts in authoritarian states reveals thatcourts can sometimes gain a good deal of independence from political actors,30 andthus potentially deter some kinds of law-breaking. But even states with less robustjudicial systems where elites may have become accustomed to operating above thelaw, the theoretical role of raising perceived risks of prosecution has been widelyaccepted as a starting point in a wide range of contexts.Raising the risk of punishment where the rule of law is otherwise weak is precisely
the formal role envisioned for the ICC. The court was designed to do this through itsown authority to prosecute. The court’s jurisdiction applies to cases of genocide,crimes against humanity, egregious human rights violations, and war crimes31 thatoccurred after 1 July 2002 in the territory of a state that has ratified the treaty orthat is committed by a national of such a state or in cases referred to it by the UNSecurity Council.32 The Office of the Prosecutor ultimately decides which cases topursue, but cases may be referred by member states (for example, Uganda, theDemocratic Republic of the Congo (DRC), the Central African Republic, and
23. Grasmick and Bryjak 1980.24. See Kleiman 2009; and Wright 2010.25. See Nagin and Paternoster 1993; and Nagin 1998.26. Klick and Tabarrok 2010.27. Klick, MacDonald, and Stratmann 2012.28. Fajnzylber, Lederman, and Loayza 1998.29. Mushanga 2011, 10, 122, 266.30. Moustafa 2014.31. We refer to these below as “ICC crimes” or “international crimes.”32. Rome Statute, Article 12(2); Chapter VIII covers UNSC authority to refer.
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Mali), the Security Council (Sudan and Libya), or initiated by the prosecutor herself(Kenya and Côte d’Ivoire). Importantly, immunities of local officials are not to berecognized by the court.33
Prosecutorial deterrence is possible only if the court’s existence and actions raisethe perceived likelihood that an individual will be tried and punished. To date, theICC prosecutor has indicted more than thirty-five people, and a further nine cases (in-volving Afghanistan, Honduras, Korea, Nigeria, Colombia, Georgia, Guinea, Palestine,and Ukraine) are under preliminary examination for jurisdiction and admissibility.Prosecutorial deterrence theory implies that investigations, indictments, and especiallysuccessful prosecutions should trigger a reassessment of the likelihood of punishmentand a boost to deterrence34—a result consistent with Kim and Sikkink’s study of na-tional human rights trials in transition countries.35 But even if suspects are never appre-hended, one costly result of the ICC regime, as Gilligan demonstrates theoretically,is that perpetrators have fewer asylum options, which potentially deters them fromflagrant violations.36
The Rome Statute’s complementarity regime creates a channel for the ICC tosupport prosecutorial deterrence at the national level as well. The ICC is designedto complement and not to preempt or substitute for national prosecution. Nationalcourts have the option of investigating a case domestically before the ICC can adju-dicate it.37 The ICC may nonetheless find a case admissible despite domestic action ifthe court determines that “the state is unwilling or unable genuinely to carry out theinvestigation or prosecution.”38 Sudan’s desultory investigations and prosecutions ofcrimes committed in Darfur provide an example of the kind of behavior the admissi-bility provisions were designed to override.39
This complementarity principle bolsters the ICC’s prosecutorial deterrence to theextent that it creates incentives for states to strengthen their own legal capacities.40
The ICC report to the United Nations notes several reforms that came after thelaunch of preliminary examinations, including reforms in Guinea, Colombia, andGeorgia.41 Nouwen documents how ICC investigations catalyzed legal reforms inthe DRC and Sudan.42 Uganda’s ICC-implementing legislation was passed only re-cently in 2010 but it empowers the Ugandan High Court to prosecute internationalcrimes.43 Thus, an indirect channel through which the ICC may exert prosecutorial
33. Rome Statute, Article 27.34. Geerken and Gove 1975.35. Kim and Sikkink 2010.36. Gilligan 2006.37. See Rome Statute, Preamble and Article 1. For a discussion of the conditions under which domestic
courts are likely to enforce international human rights law, see Lupu 2013.38. Rome Statute, Article 17(1)(a).39. ICC 2006.40. Dunoff and Trachtman 1999. This idea is termed “positive complementarity” in legal research. See
Burke-White 2010.41. ICC 2011.42. Nouwen 2014.43. Nouwen and Werner 2011.
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deterrence is through stimulating national courts to act,44 theoretically creating favor-able conditions for internal monitoring and law enforcement, bolstering prosecutorialdeterrence. Arguably, national courts have contributed to a broader system-wide ex-pectation that impunity is no longer quietly tolerated.45
In sum, prosecutorial deterrence is expected to be enhanced by any condition thatmakes prosecution more likely in a given jurisdiction, such as ratification of the RomeStatutes, passage of ICC-implementing legislation, national trials, or court reformsthat make trials more probable and credible.46 Qualitative research reveals that suchchanges become part of leaders’ updated calculations. For example, former ColombianPresident Andrés Pastrana expressed concerns that he might get prosecuted by the ICC,and the paramilitary leader, Vincente Castano, of the Autodefensas Unidas deColombia (AUC), was “sharply aware and fearful of the possibility of ICC prosecu-tion, a fear that reportedly directly contributed to his demobilization.”47 Even somerebel groups have begun to assess risks in the ICC’s shadow. For example, the twomain rebel groups in Colombia—the Fuerzas Armadas Revolucionarias deColombia (FARC-EP) and the Unión Camilista–Ejército de Liberación Nacional(UC-ELN)—have published internal documents assessing the likelihood of prosecu-tion by the ICC or domestic courts.48 ICC investigations, indictments, and convictionsor those triggered by complementarity are likely to encourage actual or potential per-petrators to reassess the risks of punishment—relative to the status quo, which is oftenimpunity—and to moderate their behavior.
Social Deterrence
A narrow focus on prosecution is likely to underestimate the full deterrent effect ofthe court. The ICC is the institutional manifestation of a movement, years in themaking, to punish international crimes and to put them firmly beyond the pale.Quite aside from its formal power to prosecute, the court’s legal mandate signalsthe nature and strength of community norms.49 When community norms are chal-lenged in a clear way (signaled, for example, by ICC actions or statements), thereis significant potential for a social reaction to law violations.The concept of social deterrence has been central to behavioral models in criminol-
ogy for decades.50 In their research on criminal behavior, Zimring and Hawkins notedlong ago that threatened consequences include “social reactions that may provide po-tential offenders with more reason to avoid conviction than the officially imposed
44. Stahn and El Zeidy 2011.45. Sikkink 2011.46. On the phenomenon of “enforcement spillovers,” by which monitoring and enforcement increases
compliance even in areas without monitoring or enforcement, see Rincke and Traxler 2011.47. Grono 2012.48. O’Brien, Engstrom, and Cantor 2011.49. Kahan 1997.50. See Williams and Hawkins 1986; and McCarthy 2002.
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unpleasantness of punishment.”51 Experimental research suggests that potential offend-ers are often deterred from violating the law more as a result of the anticipated socialresponse than the likelihood of prosecution and punishment by formal legal process-es.52 Indeed some studies conclude that “the extralegal consequences from convictionappear to be at least as great a deterrent as the legal consequences.”53 Social deterrencedepends for its effectiveness on the expression of clear standards of behavior as well asenhanced monitoring.54 Kahan emphasizes that law signals information about what abroader community values.55 The willingness of a community to defend its values in-formally must be taken into account by a would-be offender.The social consequences of violation can range from the psychic costs of stigma-
tization to the material costs of being shunned from profitable relationships. Thecentral characteristic of social deterrence is its informal, extralegal character, as dis-tinct from the likelihood of formal prosecution. One social cost of a common crimemight be that it is harder to get a job, not because one would be legally barred, butbecause many people do not want to hire—or even to be seen to hire—a criminal.Social deterrence, as this example illustrates, does not correspond directly to materialversus intangible sanctions. In the theory we advance, extrajudicial actors may shunor shame offenders; those with resources may potentially deploy material pressuresextralegally to advance community values. Importantly, this range of informalsocial pressure is both elicited and legitimated by the normative focal power of acriminal tribunal.Social deterrence is a central feature of research on compliance with international
human rights norms, which are notoriously difficult to enforce internationally. Thatliterature recognizes that international norms are largely enforced through extralegalmeans: by transnational organizations that publicize violations and ally with statesand international organizations to condemn them.56 Hafner-Burton emphasizes inter-national social pressures backed by economic sanctions.57 One conclusion to whichthe human rights literature clearly points is the central importance of extralegal deter-rents to law violation. More broadly, social deterrence is emphasized in complianceresearch where legitimacy of rules and authority plays a critical role in deterringcrimes and inducing compliance.58 In fact, it may be especially relevant preciselywhen norms are strong but the formal institutions of law—policing, courts, andformal confinement capacities—are weak.The concept of social deterrence has largely been missing from accounts of how
and why the ICC is a potentially powerful institution. This relative silence is ironic
51. Zimring and Hawkins 1973, 174.52. See Tittle 1980; and Tittle, Botchkovar, and Antonaccio 2011.53. Nagin and Pogarsky 2001, 865.54. Agnew 2011.55. Kahan 1997.56. Risse, Ropp, and Sikkink 1999.57. Hafner-Burton 2013.58. See Franck 1990; and Tyler 2006.
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since one key purpose of the ICC is to set expectations, thereby placing some tacticsoutside the boundary of acceptable behavior. As the world’s first permanent andglobal criminal court, the ICC is especially central in defining international society’sresponse to international crimes. In this spirit, Koskenniemi views international crim-inal trials as enabling the formation of a “moral community,”59 whereas Akhavan refersto the “socio-pedagogical influence of judicial stigmatization,”60 which he characteriz-es as subtle, but potentially quite far reaching.Our argument about the capacity of the ICC to stimulate social deterrence is com-
patible with this literature. Law violation in the presence of ICC authority crosses afairly bright line that the international community as a whole values and therefore hasan interest in maintaining. State officials and rebel groups vary in their sensitivity tothe values of the international community; integration into global networks and de-pendence on the approval of foreign actors critical to strengthening the ICC in thefirst place61 may well enhance external social deterrence.Domestic communities may be also highly relevant to social deterrence, as is well-
documented in the human rights literature. Simmons argues for the importance of do-mestic mobilization for deterring human rights violations of ratified treaties.62 Partiesto a civil conflict must consider their ability to maintain support from civilian popu-lations and their own troops in the event of an ICC investigation. A war crime accu-sation could severely damage a government’s or rebel group’s relationship withdomestic populations. Civil societies may be emboldened by the ICC to mobilizefor some form of justice, petitioning the cases to national courts and potentially pro-viding evidence to the ICC.63
We are not suggesting that all civil society members will want to turn to the ICC. InUganda, for example, Acholi leaders suggested traditional restorative justice ratherthan the ICC,64 but even in this case, the ICC galvanized the local discussion on ac-countability norms and (as intended by the ICC’s complementarity principle) stimu-lated domestic demands for reform of the justice system.65 Scholars have alsodocumented the supportive role of civil society actors during ICC investigations inthe Central African Republic.66 In Kenya, some supporters of Kenyatta and Rutoquite obviously did not want the ICC to put their leaders on trial,67 and the govern-ment commenced a relentless campaign against the ICC (to include Kenya’s with-drawal from the institution). Even so, in late 2011 nearly 60 percent of Kenyanssupported the ICC process, rising to nearly 70 percent in Nairobi and 86 percent inthe Nyanza region. Moreover, 77 percent of Kenyans polled said they had followed
59. Koskenniemi 2002.60. Akhavan 2005, 419.61. Goodliffe and Hawkins 2009.62. See Simmons 2009; and Neumayer 2005.63. See McKay 2004; and Hillebrecht 2014.64. Clark 2011.65. Nouwen 2014.66. Glasius 2009a.67. See Chaudoin 2016; and Mueller 2014.
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the ICC proceedings naming the Ocampo Six very closely.68 These cases illustratewhy it may be important to supplement an understanding of the ICC’s prosecutorialdeterrence power with its broader ability to mobilize extralegal pressures. As the ICCtakes action, it not only raises expectations of prosecution; it shapes social expecta-tions about what constitutes justice more broadly.
Theoretical Expectations
Our analysis suggests that the ICC’s effects may be much more nuanced than discus-sions of its formal capacities recognize. The ICC may have varying effects on differ-ent categories of actors, depending on (1) their exposure to the risk of prosecution and(2) the importance they attach—or the vulnerability they believe they have—to thesocial costs of criminal law violation.First, we expect prosecutorial deterrence to depend on state ratification, which is
the primary mechanism for the court to gain jurisdiction. The absolute risk of pun-ishment by the ICC remains small, but it is not negligible and is much higher thanwas the case when impunity was the default. Of course, government and rebelforces may believe that prosecution is a remote possibility and may be more sensitiveto risks of crude retribution by their enemies than to the threat of ICC prosecution. Ora government may have ratified to make rebel prosecution more likely,69 which doesnot affect the jurisdictional fact that to do so brings the government under ICC scru-tiny as well.70 Although the calculations of individual actors may be complex and at-tenuated, our theoretical expectation is clear: a reduction in the commission of ICCcrimes postratification is consistent with expectations based on direct prosecutorialdeterrence.We make this argument fully aware that states consciously select into treaties in the
first place. States may have ratified the ICC for a number of reasons. Simmons andDanner have argued that two kinds of states have been especially likely to ratify ICCstatutes:71 peaceful democracies for whom ratification is likely to be relatively cost-less72 but also states with a history of civil wars and weak institutions, for whommaking a credible commitment to reduce violence via ratification may be especiallyvaluable. Cultural sources of acceptance and resistance also abound. Areas of theworld that have adopted Western legal forms, such as Latin America and parts ofAfrica, have been willing to ratify the Rome statutes, but ratification in Asia, forexample, has been explained by a “disconnect between formalized justice processes
68. Ipsos-Synovate 2011.69. See Nouwen 2014 for the discussion of the Uganda case.70. It is important to note that situations, and not individuals, can be referred to the ICC for prosecution
(see the Rome Statute, Part II, Article 13 and 14), which opens up the possibility for investigation of crimescommitted by government or military officers, or nonstate actors.71. Simmons and Danner 2010.72. See also Chapman and Chaudoin 2013.
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(as exhibited in the ICC) and indigenous or embedded manners of resolving con-flict.”73 External sources of pressure to ratify should also not be overlooked. Anumber of studies have found external economic dependence to be a significant ex-planation for ICC ratification.74 For our purposes, the most significant threat to ourability to draw inferences about ICC deterrence is likely related to domestic politicaldevelopments that both encourage ratification and a shift away from domestic vio-lence, such as liberal domestic reform.Prosecutorial deterrence should also increase as the court demonstrates its will and
capacity to prosecute. Governments, military officials, and rebel leaders within thecourt’s jurisdiction are expected to consider new evidence of the court’s authorityand the prosecutor’s determination to investigate, indict, and convict. For example,the M23 rebel group in the DRC publicly expressed its willingness to adhere to in-ternational humanitarian law in the aftermath of Lubanga’s conviction, and appearsto have moderated the extent of war crimes and strengthened its soldiers’ disciplinein the wake of that case.75 If this example can be generalized, we should expect apublic display of the court’s power to strengthen direct prosecutorial deterrence.The most powerful boost to deterrence is likely to be within the situation to whichthe court’s action pertains, but could influence actors more broadly,76 since such inter-ventions display globally the authority and determination of the institution to act.ICC crimes should diminish when the court begins an investigation, indicts, orconvicts.The ICC may exert prosecutorial deterrence indirectly as well. The complementar-
ity mechanism creates incentives for states to develop their own capacity to investi-gate and try ICC crimes.77 Dancy and Sikkink have shown that when states ratifyhuman rights treaties that require them to prosecute violators, states are in factmore likely to hold domestic trials.78 Similarly, we expect ICC crimes to decreasewhen states implement ICC-consistent statutes, when they improve their courts’ cap-acity to try war criminals, and when they build military capacities to detect andpunish international crimes.79 It is possible that some states adopt ICC-statutes intheir national laws without intending to improve their criminal justice systems. Buta number of recent studies suggest that ICC-required reforms have been importantin holding human rights violators accountable.80
73. Findlay 2014, 87.74. See Meernik and Shairick 2011; and Goodliffe et al. 2012.75. See Bueno and Angwandi 2012; and Gorur 2012.76. Sikkink 2011.77. Slaughter and Burke-White 2006.78. Dancy and Sikkink 2012.79. See Morrow 2014 for internal discipline’s importance in the enforcement of laws of war.80. Grammer 2004; Kleffner 2008; and Dancy and Sikkink 2012 show that states that ratify international
treaties related to criminal responsibility, including the Rome Statute, tend to initiate human rights prose-cutions, compared with those without such ratification. Dancy and Montal 2014 provide evidence that ICCinvestigations led to more domestic human rights prosecutions and guilty verdicts in forty-six African statesbetween 1999 and 2011.
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One of our primary expectations is that extralegal social pressures deter inter-national crime as well. These mechanisms are highly conditional: they depend on theexistence of salient groups or networks who matter to the target, and who have theability to apply costly social pressure.81 In terms of materially backed social sanc-tions, we expect state actors that are more dependent on foreign assistance to bemore likely to be deterred from using tactics that are a clear violation of internationalcriminal law.82 But social pressure need not be backed by material coercion. We alsoexpect state actors to be deterred by mobilization pressures from domestic and inter-national human rights organizations.83 Domestic groups draw attention to officialactions, raising legitimacy challenges that, at a minimum, have the potential to in-crease the costs to government actors of maintaining power. Where human rights mo-bilization is more intense locally, government officials and military forces should bemore deterred from committing international crimes, especially if state officials haveraised behavioral expectations by ratifying the ICC’s statutes.Unlike state actors, rebel groups rarely have formal institutional mechanisms to
participate in the creation of international law or to commit themselves to internation-al norms.84 Vague awareness of the ICC’s jurisdiction, an ability to hide in roughterrain, and in some cases exceptional brutality contribute to a weaker expectationof deterrence for many rebel groups. Nonetheless, in theory, the ICC has changedthe legal context in which rebels operate as well. On the one hand, like state officers,rebels may be formally subject to enhanced prosecutorial deterrence, since the ICChas the power to investigate situations involving both state and nonstate actorswithin its jurisdiction. In fact, among the individuals indicted by the ICC,85 abouthalf are rebel-group leaders. On the other hand, rebel groups may not be as well in-formed as government officials of the court’s operation, which could attenuate pros-ecutorial deterrence effects.Our social deterrence theory predicts that some rebels may be more deterrable than
others. Secessionist groups, for example, need to cultivate international legitimacy.Recent research suggests they therefore tend to abide by international humanitarianlaw and refrain from civilian abuse, relative to nonsecessionist groups.86 This isdespite the fact that separatist civil wars tend to be brutal and long-lasting, generatingmany battle-related deaths between combatants.87 Furthermore, secessionist groupsare more likely to be aware of international affairs and to conduct international diplo-macy than are nonsecessionist counterparts.88 Consistent with the civil war literature,we would expect any deterrent effect to be stronger to the extent that such groups are
81. Agnew 2011.82. Hafner-Burton 2013.83. Simmons 2009.84. Sivakumaran 2012.85. Within eight situations, twenty-one cases, and a total of thirty-two defendants, fourteen defendants
are rebel leaders and thirteen had official positions in governments. Five have no affiliations.86. See Fazal 2013; and Jo 2015.87. Walter 2009.88. Huang 2013.
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able to exert strong command and control over their troops.89 Table 1 summarizes ourhypotheses.
Prosecutorial and social deterrence effects are not necessarily completely independ-ent influences. Prosecutorial deterrence can shape social deterrence over time as in-vestigations, arrests, and convictions reinforce broadly shared values, which sharpensthe focal power of an institution such as the ICC. Heightened social sensitivity canin turn strengthen prosecutorial deterrence when civil society actors push for legalreforms and cooperate by reporting, testifying, and producing evidence in legal pro-ceedings. The international community created the ICC, after all, because it wantscrimes against civilian populations to stop. Prosecutorial and social deterrence are mu-tually reinforcing, but the latter can matter even if the former is statistically unlikely.
Empirical Investigation of the ICC’s Impacts
Sample
Studying deterrence empirically is a difficult endeavor. The first challenge is to identifya relevant population at risk of committing a crime on a scale that might conceivablydraw the ICC’s attention.90 We need a set of cases where atrocities seem possible so wehave therefore selected countries that had at least one episode of civil war since 1945.Civil wars are not the only political context that can generate ICC crimes, but they arelikely to increase their occurrence among warring parties.91
TABLE 1. Expectations
I. Prosecutorial deterrence hypothesesDirect A. Ratification of the ICC statutes is associated with a reduction of violence
against civilians by state actors.B. ICC actions, such as preliminary examinations, investigations, and prose-
cutions are associated with a reduction of violence against civilians by bothstate and nonstate actors.
Indirect A. Civilian killing should decrease when states implement ICC-consistentdomestic criminal statutes.
II. Social deterrence hypotheses A. Civilian killing by government forces should decrease the greater a state’sdependence on foreign aid.
B. Civilian killing by governments should decrease when human rights organ-izations are mobilized to demand accountability.
C. Civilian killing should decrease for secessionist rebel groups with internaldiscipline.
Note: All of the II.A to II.C effects should be amplified where the ICC is in force.
89. See Weinstein 2007; Cronin-Furman 2013; and Jo and Thomson 2014.90. Achen and Snidal 1989.91. Of the eight ICC situations, six are related to civil wars while Kenya and Côte d’Ivoire involve elec-
tion violence.
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Based on this sampling strategy, potential candidates for deterrence are found in 101states and involve 264 rebel groups between 1989 and 2011.92 For the case of govern-ment violations, the unit of observation is the country-year. The resulting data structureis a balanced panel for each country for twenty-three years.93 For the case of rebels, wemust account for their varying and often shorter life span (average longevity of 4.5years)94 so we analyze only the years when rebel groups were active in an unbalancedpanel with each rebel group as a unit. The list of rebel groups is from the Non-StateActor (NSA) Dataset,95 which defines a civil war with a threshold of twenty-fivebattle deaths. This means we are likely examining the ICC’s deterrence potential vis-à-vis rebels who are at least moderately capable of inflicting violence.The resulting sample includes all ICC “situations”96 to date—Uganda, the Central
African Republic, the DRC, Côte d’Ivoire, Sudan, Kenya, Libya, andMali. The coun-tries in the sample are diverse in terms of level of violence against civilians (zero to500,000 killed), ratification records (fifty-two had ratified and forty-nine had notduring our observation window), and geographic scope (forty-one African countries,twenty in the Americas, seventeen in Asia, eleven in the Middle East, and twelve inEurope). The period 1989–2011 includes thirteen years before the ICC was estab-lished in 2002 and ten years after, which allows us to assess the change before andafter ICC entry into force.
Dependent Variable
The dependent variable is the number of civilians killed intentionally by governmentforces or rebel groups in a direct military confrontation. The data are culled based onmedia reports, sourced from the One-Sided Violence (OSV) data set.97 The dataexclude indirect events such as unintended collateral damage, social demonstrations,or deaths from environmental disasters. Intentionality is important for our purposes.Deliberate civilian killing, usually generated by superior command, is an egregiousrights violation, a crime against humanity, and a war crime under ICC jurisdiction.It is clearly one of the major crimes that the ICC was designed to deter and topunish.98 We acknowledge it is not the only ICC crime that potentially might be
92. See the online appendix for the list of countries and rebel groups.93. Exceptions include states that were in existence for short periods during these years or that became
states after 1989, such as Yugoslavia (only up to 2002), Croatia (1991–), Bosnia and Herzegovina (1992–),Tajikistan (1991–), Uzbekistan (1991–), and South Sudan (2011–). See Polity IV Project’s PoliticalRegime Characteristics and Transitions, 1800–2012 (v2013). Available at <http://www.systemicpeace.org/inscrdata.html>, accessed 6 January 2014.94. Authors’ calculation of the rebel sample.95. Cunningham, Salehyan, and Gleditsch 2013.96. ICC cases are categorized into “situations,” usually a particular conflict situation in a country. One
“situation” can include multiple cases involving multiple individuals.97. Eck and Hultman 2007. The data are available at <http://www.pcr.uu.se/research/ucdp/datasets/
ucdp_one-sided_violence_dataset/>, accessed 6 January 2014. We use Version 1.4-2013, 1989–2012.98. Rome Statute, Articles 7 and 8.
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deterred,99 but to our knowledge, it is the best available measure to assess the ICC’simpact cross-nationally. Relative to other ICC crimes such as rape, intentional killingof civilians is more observable and comparable across cases.100 Significant disagree-ments exist about what constitutes a legal case of genocide,101 and it is difficult to tellthe age of children when they are recruited to military ranks,102 making these otherICC crimes less amenable to systematic testing. Nonetheless, if intentional civiliankilling can be deterred, this should encourage further research into a range ofheinous crimes—from sexual violence to trafficking in children to widespread pillag-ing—that the ICC was meant to address.103
In our sample, the yearly average intentional civilian killing by a government isthirty-four, excluding the Rwanda 1994 figure of 50,000.104 The figure for rebelgroups is eighty-three. Government killing does occasionally occur in non-civil-waryears; Kenya’s 2007–2008 election violence is one such example. Because OSVdata include any case that generates more than twenty-five civilian fatalities, its stan-dard is different from the definition of civil war given by the Armed ConflictDataset, which is more than twenty-five battle deaths.105 Consequently, our data setincludes 30 percent civil war years and about 70 percent non-civil-war years. About27 percent of the civil war years and 3 percent of the non-civil-war years in thesample had government-perpetrated civilian killings, corroborating our claim thatcivil wars are breeding grounds for ICC crimes, while showing that they can occur(though rarely) during non-civil-war years as well. For the years where OSV data donot specify civilian killing counts, we assume zero counts for civilian killing.106
Independent Variables
We test for direct prosecutorial deterrence with two indicators. One is whether or notthe state has ratified the Rome Statutes (ICC RATIFICATION), which we expect to be as-sociated with the reduction in civilian killing by government actors. The second in-dicator is what we call ICC ACTIONS. This is a three-year moving average of the
99. Schabas 2011.100. See Cohen et al. 2011 for the difficulty of collecting data on sexual violence.101. Rome Statute, Articles 7 and 8.102. Drumbl 2012.103. To confirm whether the OSV data include most of the cases of political violence involving noncom-
batants, we check our results with the data of State-Sponsored Mass Killing by Ulfelder and Valentino 2008(data extended to 2012 by Ulfelder, on file with the authors). Although the criteria for mass killing andcivilian killing are different, there is more than 90 percent data overlap, suggesting the reliability of theOSV data for our purposes.104. Including Rwanda 1994, the average is 230 a year.105. Themnér and Wallensteen 2013.106. Some of these cases clearly involve no violence; others are uncertain because of the difficulty veri-
fying who committed the acts, exact counts, etc. The latter cases are classified and recorded as “unclear” bythe OSV project. Authors’ correspondence with Therése Pettersson, director of OSV project, 29 November2011. So our coding decision for all zero outcomes is conservative.
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collective counts of preliminary examinations, investigations, and arrest warrants an-nounced by the Office of the Prosecutor (OTP), up to the previous year.107 This var-iable signals to actors globally the determination of the OTP to prosecute, and weexpect it to be associated with the reduction of intentional civilian killing by bothgovernments and rebels over time.Indirect prosecutorial deterrence via complementarity is captured by DOMESTIC
CRIME STATUTE, which ranges from 0 (no domestic crime statute dealing with inter-national crimes in place) to 1 (existing domestic crime statute), 2 (minor reform),and 3 (substantial reform).108 Since these cases of legal reform may face difficultiesin implementation in societies with weak legal institutions,109 we control for the RULE
OF LAW indicator published by the World Bank.110 We expect statutory reform to helpdeter intentional civilian killing by increasing the perceived likelihood of meaningfuldomestic prosecution.We proxy a state official’s international susceptibility to material manifestations of
social pressure with total official development assistance. AID PRESSURE is captured bythe amount of economic aid, multiplied by the reporting counts from the New YorkTimes (reflecting donor interest).111 Domestically, social deterrence is likely to beless tangible and should intensify with mobilization by human rights organizations(HROs). The growth of HROs is expected to stimulate demands for justice, in turnraising legitimacy concerns and governing costs for state officials and militaryleaders who commit atrocities. The variable HRO GROWTH measures the incrementalnumber of international and domestic HROs within a country.112 We recognizethat some HROs are critical of the ICC while others support its efforts, but onaverage this indicator proxies attention to human rights within a polity, capturingdemands for attention to the plight of victims and challenging the legitimacy of theperpetrator. Both AID PRESSURE and HRO GROWTH are interacted with ICC RATIFICATION
to capture the argument that social pressure is strongest when backed by clear expres-sions of community standards of behavior, which we assume is precisely what rati-fication of the ICC does.We also control for the factors that influence ratification and atrocities to ensure
that it is ICC ratification, not other factors, that reduce violence against civilians.Logic and experience suggest that democracies are much less likely to target civilians,
107. ICC website available at <http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx>, accessed 10 May 2014. We did not code verdicts because the first onewas handed down in 2011, the final year of our study.108. See the online appendix for coding details and extended discussion and model showing that ICC
ratification increases the likelihood of strengthening domestic crime statutes. ICC Legal Tools,Implementation Database, available at <https://www.legal-tools.org/>, accessed 19 November 2013.See Table A6 in the online appendix.109. See Terracino 2007; and Open Society Foundation 2010.110. The Worldwide Governance Indicators available at <http://info.worldbank.org/governance/wgi/
index.aspx#home>, accessed 15 December 2013.111. Nielsen 2013 logs economic aid because of its skew, following the convention in the aid literature.
His data are available for 1982–2004.112. Meernik et al. 2012. Available for 1998–2007.
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so we control for POLITICAL REGIME TYPE using Polity IV data. We also employ a binaryvariable, ONGOING CIVIL WAR, from the PRIO Armed Conflict Dataset to mark years ofactive civil conflicts.113 To reduce the possibility that temporal trends affect ourresults, we include both year dummies and an indicator for the presence of theICC itself, POST ICC REGIME, which is 0 before 2002 and 1 on and after 2002.114
Finally, we control for states’ preferences for and experiences with other peace andjustice institutions. A strong preference for peace and reconciliation is indicated bypolicy decisions designed to curtail violent conflict and achieve peaceful conciliation,including the acceptance of peacekeepers115 and the decision to institute amnesty forhuman rights violations that may have been committed in the past. We first combineand then cumulate these experiences over time, calling this variable PEACE PREFERENCE. 116
A preference for justice is proxied by policy combinations, including human rightstrials and accountability via truth commissions; we call this variable JUSTICE
PREFERENCE.117 Trials and other forms of accountability may influence the level of vio-lence in a society;118 here we deploy these accumulated experiences as indicators ofrevealed preferences for justice. It is important to attempt to model these preferencesin anticipation of inevitable concerns about endogeneity that we discuss later.Data on rebel groups’ characteristics are drawn from the NSA Dataset.119 We view
SECESSIONIST REBELS as the rebel groups most likely to seek legitimacy, and thus mostsusceptible to various forms of social deterrence.120 We include rebels with auton-omy aims as well as those involved in secessionist conflicts in this category becausemany rebel groups pursue both goals. REBEL DISCIPLINE captures strength ofcommand and control with an ordinal measure (low, moderate, high). We alsoinclude an ordinal REBEL STRENGTH scale to control for the military strength of rebelgroups relative to government (much weaker, weaker, equal, stronger, much strong-er). All other variables are the same as in the government analysis.
113. Themnér and Wallensteen 2013. This dummy variable records both internal and internalized civilconflicts.114. The online appendix provides a detailed discussion of strategies and tests for dealing with the endo-
geneity of ratification, including consideration of omitted variables, preprocessing cases through matching,and endogenizing ratification using instrumental variables.115. 0 = neither peacekeepers nor amnesty policy in place; 1 = one of these in place; 2 = both in place.
See Hultman, Kathman, and Shannon 2013.116. 0 = neither peacekeepers nor amnesty policy in place; 1 = one of these in place; 2 = both in place.117. 0 = no international or domestic human rights trials experience; no truth commissions; 1 = experi-
ence with one of these; 2 = experience with two or more; 3 = experience with all three. International tribunalexperiences are denoted by dummy variables for Yugoslavia, Rwanda, Sierra Leone, Cambodia, Lebanon,and Guatemala and are coded 1 at the tribunal’s starting point, and thereafter. Experience with human rightstrials or truth commissions is coded one year after the inception of a truth commission or trial and cumu-lated until the end of our observation window. Data source is the Transitional Justice Database, available athttp://www.tjdbproject.com/, accessed 21 November 2013. Lagged variables are used in all the followinganalyses.118. Kim and Sikkink 2010.119. Cunningham, Salehyan, and Gleditsch 2013. The data are available at <http://privatewww.essex.ac.
uk/~ksg/eacd.html>, accessed 5 December 2013.120. In the online appendix, we consider an alternative measure of rebel groups’ legitimacy-seeking
characteristics.
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We first present the results from our analysis of intentional civilian killing by gov-ernments and then move to the analysis of rebel groups. We use random effects panelanalysis as our key estimation approach.121 Missing data were imputed to increaseefficiency and reduce bias.122
Results
Government Forces
Table 2 presents the results for government forces. Consistent with our hypothesisabout prosecutorial deterrence, the significant and negative incidence-rate ratio123
suggests that ratification reduces the intentional civilian killing by a factor of .531,compared to nonratification.124 For example, if, hypothetically, 100 civilians werekilled by a nonratifying government, our estimates suggest about fifty-three civiliansare likely to be killed, assuming ratification with all other control variables held cons-tant (see Figure 1). All specifications control for core predictors for civilian killingsuch as the nature of the political regime, ongoing civil war, intentional rebelkilling of civilians (to account for the possibility of reciprocity as well as fortrends in violence over time), and an indicator for before and after the ICC cameinto force. Surprisingly, these models suggest that regime type is not likely to explainintentional civilian killing, though active civil wars certainly do. Governments arealso much more likely to commit violence against civilians when rebels do so, whichsuggests that ICC deterrence may contribute to breaking cycles of violence committedon both sides of a conflict.Model 2 looks at the effect of ICC ACTIONS, the three-year moving average of previous
preliminary examinations, investigations, and warrants by the OTP. According to theincidence-rate ratio based on Model 2, one additional investigation each year overthe three-year term is estimated to reduce intentional civilian killing by a factor of0.570. (See Table 1 for an estimate of lives spared, which is substantial.) Note thatthe significant effect of ICC ACTIONS is robust even after including POST-ICC REGIME, a var-iable that captures the court’s existence, but not its actions. It is therefore quite unlikelythat the effect of ICC ACTIONS is merely an artifact of some general violence-reducingtemporal trend or the result of a passive court. Rather, ICC ACTIONS represent new infor-mation, available to all actors, demonstrating that the ICC is operational, authoritative,and that the prosecutor means to bring perpetrators to justice.
121. We use random effects estimation because our goal is to make inferences for a broader sample, notlimited to the countries in our sample. See Clark and Linzer 2015. Fixed effects estimation, the results ofwhich are consistent with our random effects results, is also presented in the online appendix Table A2.122. King et al. 2001. Amelia II, a program for missing data, was used for this multiple imputation
process.123. See Hilbe 2007, on the calculation and interpretation of incidence-rate ratio in count models.124. The result holds after eliminating outlier Rwanda in Model 2, a conflict that resulted in 500,000
deaths.
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TABLE 2. ICC effect on civilian killing by governments
Model 1 Model 2 Model 3 Model 4 Model 5 Model 6 Model 7
ICC ratification ICC actions ICCcomplementarity
All ICC effects Social deterrence(mobilization)
Social deterrence(aid)
Underlyingpreferences
ICC RATIFICATION −0.632** −0.482* −0.553** 0.108 −0.508*(0.261) (0.267) (0.265) (0.317) (.270)
ICC ACTIONS −0.562*** −0.524** −0.490**(0.209) (0.208) (0.210)
DOMESTIC CRIME STATUTE −0.489** −0.397* −0.344(0.215) (0.222) (0.230)
RATIFICATION * AID PRESSURE −0.074***(0.024)
AID PRESSURE 0.010(0.007)
RATIFICATION * HRO GROWTH −0.022*(0.013)
HRO GROWTH 0.003(0.004)
PEACE PREFERENCE 0.397***(0.135)
JUSTICE PREFERENCE −0.391***(0.155)
POLITICAL REGIME TYPE −0.008 −0.017 −0.013 −0.007 −0.013 −0.011 −0.007(0.016) (0.015) (0.015) (0.015) (0.016) (0.016) (0.016)
RULE OF LAW −0.439*** −0.427*** −0.400*** −0.417*** −0.439*** −0.443*** −0.373***(0.120) (0.121) (0.120) (0.120) (0.125) (0.125) (0.121)
ONGOING CIVIL WAR 2.216*** 2.263*** 2.225*** 2.199*** 2.172*** 2.188*** 2.076***(0.210) (0.211) (0.210) (0.210) (0.220) (0.222) (0.211)
REBEL KILLING 0.0001*** 0.0001*** 0.0001*** 0.0001*** 0.0001*** 0.0001*** 0.0001***(0.00003) (0.00003) (0.00003) (0.00003) (0.00003) (0.00003) (0.00003)
POST ICC REGIME 1.960*** 1.882*** 1.898*** 1.954*** 1.646** 1.770** 1.891***(0.678) (0.680) (0.677) (0.675) (0.739) (0.744) (0.674)
Observations 2,264 2,264 2,264 2,264 2,163 2,163 2,264Number of countries 101 101 101 101 100 100 101
Notes: Standard errors are in parentheses. The dependent variable is the count of civilians killed intentionally by government forces. Results are based on a negative binomial panel analysiswith random effects. Year fixed effects are included but not reported. Constants are suppressed. * p < .10; ** p < .05; *** p < .01.
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What of complementarity? Model 3 demonstrates that improvements in DOMESTIC
CRIME STATUTES—which are themselves influenced by the presence of the ICC125—
are also associated with reduced civilian killing. This effect is robust to the control ofRULE OF LAW, suggesting that it is not merely the capacity to enforce but the substantivelegal change that is critical.One categorical shift toward stronger ICC-consistent domes-tic legal reform is estimated to reduce civilian killing by a factor of 0.61, the substantiveimpact of which is illustrated in Figure 1. Importantly, ratification of the ICC itself hassignificantly contributed to these reforms. Knowing the ICC may step in where domes-tic institutions fail seems to have encouraged domestic legal change, which in turn helpsto deter at least some intentional violence against civilians by government forces.Model4 includes all ICC prosecutorial effects simultaneously. It demonstrates that ratification,ICC signals of strength via prosecutorial actions, and complementarity have all contrib-uted to significant reductions in intentional civilian killing.Our second main hypothesis is that state actors can be socially deterred. Extralegal
social pressure at the domestic level is most likely to be of the nonmaterial sort; forexample, challenges to the justness and legitimacy of actions taken by government
FIGURE 1. Estimated effect of prosecutorial risks on intentional civilian killing
125. In an ordered probit model of improvements in domestic criminal statutes, ratification of the ICCwas far more important than either regime type or the rule of law in explaining such reforms. See full resultsin the online appendix, Table A6.
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agents. These challenges are hypothesized to be strongest where law focuses socialexpectations and draws bright lines that distinguish unacceptable behavior. The inter-action term in Model 5 tests this idea. It shows that in addition to whatever effect rat-ification alone may have, human rights groups are able to capitalize on ICC norms tofurther hold governments accountable to civil society when their state has ratified theRome Statute. The combination of ICC ratification and growth in human rights mo-bilization, captured by the interaction term, is associated with less intentional killing(that is, a negative coefficient), likely through social deterrence but also becausehuman rights organizations contribute to prosecutorial risks. Our goal is not to disen-tangle these effects, but to illustrate that they are in fact mutually reinforcing.Interestingly, in the absence of ICC ratification, human rights organizations appearto have far less traction.
Figure 2 plots marginal effects of HRO GROWTH conditional on ratification, based onthe estimates from Model 5 in Table 2. The graph shows the change in the predictedcount of civilians killed as mobilization increases. Because the number of HROs in-creases about two per year on average and standard deviation is about 25, we reportthe graph within 2 standard deviations, from −50 to 50 organizations. The marginaleffects remain negative between −2 and −7 throughout the entire range [−50, 50],indicating that HRO GROWTH generally decreases civilian killings. But this civilsociety effect is substantially magnified by the focal power and jurisdiction of theICC: the slope given ratification is steeper and more negative than for nonratifyingstates. With ICC ratification, adding one more human rights organization is estimated
FIGURE 2. Marginal effects of mobilization on civilian killing conditional on ICCratification
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to reduce intentional killing by between three and six civilians. Without ICC ratifica-tion, the effect of increases in HROs is almost flat. Theoretically, this is what wewould expect if civil society organizations use highly focal legal values to hold gov-ernments more accountable for their actions.
Of course, it is possible that both ICC RATIFICATION and HRO GROWTH are attributableto some third factor, such as political liberalization. To address what is essentially aform of potential omitted variable bias, we control for political regime type in Table 2and further explore this broader reform thesis in the online appendix using FreedomHouse measures of changes in civil liberties. The evidence suggests that the connec-tion between ratification and mobilization is likely not spurious: even controlling forbroader governance changes (obviously not attributable to ICC ratification), thegrowth in the number of HROs is strongly connected to the reduction in civiliankilling only when a state has ratified the ICC statutes.126
At the international level, social deterrence may be supported through economicdependency relationships. Our results show that while aid itself is not systematicallyassociated with a reduction of violence, governments that ratified the ICC Statutewere subsequently much more likely to reduce or to refrain from intentional civilian
FIGURE 3. Marginal effects of aid pressure on civilian killing conditional on ICCratification
126. See Table A5 in the online appendix for supporting evidence.
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violence the more aid they received (Model 6). As Figure 3 illustrates, increasing aidreduces violence more with ICC ratification than without. Social pressures—in thiscase, the possibility of losing aid—appear to provide important support for inter-national norms. In contrast, without ratification, increasing aid has little marginaleffect. Similarly, ICC ratification has much weaker effects when states receive noforeign aid at all. Social deterrence operates precisely under these interactive condi-tions: when extralegal pressures interact with accepted focal norms.Model 7 contains all the ICC-related variables as well as two key proxies for under-
lying preferences for peace and for justice. By including these proxies, we examinehow changing underlying proclivities toward peace and justice alone cannot explainthe deterrent effects we are trying to isolate. Model 7 shows that these two prefer-ence proxies do significantly influence the likelihood that governments will targetcivilians. In particular, experience with justice and accountability institutions(trials and truth commissions) are correlated with reduced killing, while the oppositeseems to be true of efforts to reconcile and establish peace. But even when wecontrol for such preferences and experiences, our central finding is the same: theICC continues to exert independent deterrence effects of approximately the samemagnitude. There is a slight decrease in the estimated effect of DOMESTIC CRIME
STATUE reforms, but the sign is strongly negative and nearly statistically significant.The evidence of the ICC’s ability to deter is based on rigorous controls for many
underlying conditions that could plausibly contribute both to ratification andreduced civilian killing, such as changing regime type, quality of the rule of law, gov-ernment-rebel reciprocity regarding civilians, even changing experiences and prefer-ences with respect to peace and justice. But there may still be concerns that ICCratification is not causally related to civilian violence. One possibility is that some rat-ifying countries were already in the process of halting civilian killing by the late 1990s,and therefore might have selected themselves into ratification.127 To account for thispotential source of endogeneity, we conduct matching analysis to control for importantcharacteristics that may lead some states to ratify in the first place. Using a coarsenedexact matching algorithm,128 we find results similar to our panel analysis.129 We rec-ognize that matching does not completely solve the problem of selection on unobserv-ables. But matching does show that the net effect of ratification and ICC-relatedinterventions are strongly discernable after controlling for selection into ratification,getting a balanced sample via matching between treatment (ratification-years) andcontrol (nonratification-years), and estimating the differences between these cases.A second potential threat to inference is the temporal trend of violence. Critics
might suspect that our results are primarily attributable to the less brutal nature ofmore recent conflicts,130 rather than the ICC itself. However, we find no particular
127. See Simmons and Danner 2010; and Chapman and Chaudoin 2013.128. Iacus, King, and Porro 2012.129. Detailed procedures and associated results are reported in the online appendix. The appendix also
reports results for an instrumental variable specification. See Table A4.130. See Goldstein 2011; Pinker 2011; but see Fazal 2014.
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trend in overall violence between 1989 and 2011 (Figure 4).131 Average battle-relateddeaths worldwide have consistently hovered around 500 per year during the past twodecades, albeit with a slightly decreasing trend. Moreover, the results are robust to theinclusion of period and year dummies. The results in support of ICC deterrence arenot likely simply a reflection of a decreasingly violent climate.132 Collectively, theevidence is highly suggestive that the ICC has influenced government tactics whenit comes to civilian violence. We now analyze whether the ICC has influenced thebehavior of nonstate actors.
Rebel Groups
Rebel groups are likely to be the most difficult case for ICC deterrence. Rebels rarelyparticipate in norm consolidation during international negotiations. They are notdirectly responsible to any constituency, have varying motives from secession toself-enrichment, and often are located in regions that make their crimes difficult toinvestigate. If indicted, they are notoriously hard to apprehend. In the early days ofthe ICC many rebel groups might not have been informed of its jurisdiction oreven its existence, although that is changing.Table 3 reports the results of civilian killing by rebel groups in a way analogous to
that of governments in Table 2. It is clear that formal legal change apparently makes
FIGURE 4. Battle-related deaths and government civilian killing
131. Battle-related deaths are from Uppsala Conflict Data Program’s Battle-related Deaths Dataset v.5-2013. Civilian killing counts are from the One-sided Violence Dataset v.1.4-2013. See Uppsala ConflictData Program 2013; and Eck and Hultman 2007.132. Our results also hold when controlling for battle deaths, based on the data from the Uppsala Conflict
Data Program.
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TABLE 3. ICC effect on civilian killing by rebel groups
Model 1 Model 2 Model 3 Model 4 Model 5 Model 6
ICC ratification ICC actions ICC complementarity All ICC effects Social deterrence without ICC Social deterrence with ICC
ICC RATIFICATION 0.287 0.328(0.222) (0.223)
ICC ACTIONS −0.186*** −0.197***(0.0540) (0.0553)
DOMESTIC CRIME STATUTE 0.138 0.197(0.118) (0.124)
RULE OF LAW 0.214** 0.198*(0.102) (0.103)
SECESSIONIST REBELS −0.641*** −1.086**(0.144) (0.423)
SECESSIONIST * DISCIPLINE *POST ICC
−0.172
(0.121)SECESSIONIST * DISCIPLINE 0.285
(0.200)DISCIPLINE * POST ICC 0.628***
(0.185)DISCIPLINE/CENTRAL COMMAND
AND CONTROL
−0.404***
(0.124)POLITICAL REGIME TYPE −0.0393*** −0.0368*** −0.0584*** −0.0553*** −0.0260** −0.0310***
(0.0107) (0.0107) (0.0141) (0.0142) (0.0110) (0.0110)POST ICC REGIME 0.106 0.456*** 0.0975 0.342** 0.123 −0.994***
(0.127) (0.140) (0.125) (0.147) (0.122) (0.364)REBEL STRENGTH 0.216** 0.232*** 0.263*** 0.259*** 0.185** 0.271***
(0.0895) (0.0892) (0.0936) (0.0935) (0.0895) (0.0938)GOVERNMENT KILLING 0.00000891*** 0.0000089*** 0.00000898*** 0.00000897*** 0.00000888*** 0.00000891***
(0.000000959) (0.000000951) (0.000000946) (0.000000953) (0.00000094) (0.00000103)Observations 2,196 2,196 2,196 2,196 2,196 2,196Number of rebel groups 260 260 260 260 260 260
Notes: Standard errors are in parentheses. The dependent variable is the count of civilians killed by rebel groups. Results are based on a negative binomial panel analysis with random effects.Constants are suppressed. * p < .10; ** p < .05; *** p < .01.
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no impression on rebel groups generally. Neither ICC RATIFICATION (Model 1) norDOMESTIC CRIME STATUTE (Model 3) appears to reduce rebel civilian killing.However, even rebel groups appear to respond to ICC ACTIONS (Model 2). Rebels donot respond to legal change alone; they are much more impressed with action. Theeffects are borne out consistently in Model 4, which includes all ICC prosecutorialrisks. Rebels tend to behave as though they update their estimates of their chancesof prosecution when the ICC demonstrates its resolve through investigations, war-rants, and prosecutions. The incidence-rate ratio for ICC ACTION is .830 [.747,.923].133 Figure 1 illustrates the estimated impact for a hypothetical rebel group re-sponsible for some 100 civilian deaths. We estimate that in such a case about seven-teen individuals might be spared through the deterrent effects flowing frominvestigative and prosecutorial actions by the ICC. This suggests that rebels arelikely to alter their tactics in light of new evidence that the prosecutor’s officeintends to hold actors accountable for their atrocities.Models 5 and 6 attempt to capture social deterrence among rebel groups. Rebel
groups with secessionist aims are in general likely to kill fewer civilians than thosewithout such aims (Model 5). We use a triple interaction among SECESSIONIST
REBELS, REBEL DISCIPLINE, and POST ICC REGIME in Model 6 to test the idea that secession-ist rebels with internal discipline further reduce their violence after the ICC regime isin place. The triple interaction term is negative and weakly significant, indicatingsome evidence of social deterrence for a particular class of rebel groups. The substan-tive effects suggest some possibility of social deterrence among rebel groups. Forexample, our estimate suggests that a hypothetical well-organized secessionist move-ment that would have used tactics intentionally leading to the deaths of 100 civiliansin the years prior to the ICC’s entry into force might have killed “only” eighty-twocivilians after entry into force, holding all other variables at their mean.134 The dif-ferences are statistically distinguishable and do suggest some behavioral moderationafter the ICC entered into force. Most importantly, these results provide useful guid-ance on where to look for normative progress among potentially violent nonstateactors: those with both the incentive and the ability to control their troops.
Conclusion
Few issues in international relations are more urgent than improving the life chancesfor civilians who become pawns in civil war violence. Since the end of the Cold War,
133. This number is calculated from the incident rate ratio (IRR) in Stata. The IRR for ICCACTION is .830[.747, .923]. This means that a one-unit increase of ICC ACTION variable is expected to decrease the numberof civilians by a factor of .830, while holding all other variables in the model constant.134. The marginal effects of civilian killing among secessionist rebel groups with strong command and
control is estimated at –2.300 [–2.739, –1.861] in the pre-ICC regime and –1.926 [–2.442, –1.410] in thepost-ICC regime. To create estimates assuming 100 deaths before the ICC era, we use the ratio of 2.3 /1.9 =100/82.
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the international community has been groping toward a way to end impunity withrespect to the worst human rights violations, especially in intrastate conflicts. TheYugoslavian and Rwandan Tribunals were important milestones in this regard, butthe most ambitious effort to date has been the ICC. Few institutions have inspiredsuch high hopes while stimulating so much controversy. Even though the court hasbeen operating for only twelve years, it is time to supplement anecdotal speculationwith careful study of its effects. As realists Goldsmith and Krasner remind us, “idealscan be pursued effectively only if decision-makers are alert to… the consequences oftheir policies.”135
This study is an attempt to at least address the “chasm between theory and practice” 136
noted by ICC skeptics. First, we have been careful to specify exactly what it is we mightexpect the ICC to do: to deter a significant crime category within its jurisdiction. This isnot the only consequence one might want to explore relating to the ICC, but it is one of itsprimary goals. Civilian suffering as the result of intentional, strategic behavior by com-batants has been one of the more tragic outcomes of the explosion of civil wars in the pasttwo decades.Second, we have theorized two broad and mutually reinforcing channels of poten-
tial deterrence—prosecutorial and social deterrence—and specified the conditionsunder which we might expect them to hold. We have argued that the ICC contributesdirectly to prosecutorial deterrence by investigating and prosecuting internationalcrimes on its own authority. It also encourages member states to improve their capac-ity to reduce, detect, and prosecute such crimes domestically. Indeed, ratifying statesare much more likely than nonratifiers to do so. As well, there is strong evidence of areduction in intentional civilian killing by government actors when states implementICC-consistent statutes in domestic criminal law, which we can reasonably attribute,at least indirectly, to the ICC’s influence. Such domestic statutes magnify the ICC’sprosecutorial deterrent effect by bolstering it with the added possibility of punishmentat home. Finally, it is critical to understand that legal rules interact with social pres-sures, both tangible and intangible. The ICC also deters because it mobilizes the in-ternational community as well as domestic civil society to demand justice. In thissense, our view of the ICC is fully consistent with broader trends in human rightsprosecutions at the local, regional, and global level.137
We want to stress that our claims are modulated. People who intentionally terrorizecivilians for their personal or political purposes are difficult to deter under any cir-cumstances. But through the channels we discussed, the ICC has raised the risks ofconsequences for violations. We illustrate the plausibility of these channels butalso demonstrate their limits. Governments that depend on aid relationships areeasier to deter than the more self-reliant, largely because their economic dependencemakes them more vulnerable to external actors who use their resources to enforce
135. Goldsmith and Krasner 2003, 48.136. Ibid., 55.137. Sikkink 2011.
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broader community values. Rebels are harder to deter than governments.Nonetheless, even rebels appear to have significantly reduced intentional civiliankilling when the ICC has signaled its determination to prosecute. Debates over theeffects of the ICC have been sterile largely because they have failed to specify theconditions under which one might expect the court to work.We are not pushing the position that one prosecutor, acting alone and without sig-
nificant backing by the international community or local support, could have broughtabout these consequences merely by issuing a decision to investigate or signing awarrant. ICC interventions are powerful because they are part of a package ofefforts to rally support for ending impunity. Moreover, part of the package hastaken time to unfold—a redoubling of domestic efforts to develop the legal capacityto prosecute crimes against humanity and other egregious rights abuses, which is pre-cisely how the ICC’s complementarity is intended to operate. The evidence suggeststhese efforts contributed to an indirect prosecutorial effect of the ICC itself, thoughonly for government officials. But the evidence also suggests that the ICC’s demon-strated determination to investigate and issue warrants has contributed to the reduc-tion of violence by convincing even some types of rebel leaders that impunity is awaning option.We are under no illusions that the International Criminal Court has positive
impacts in all cases. These are average results, based on imperfectly measured expo-sures to prosecutorial and social risks and costs. Our theory as well as empirical anal-ysis of prosecutorial deterrence is probabilistic, not deterministic. It is easy to point toconflicts that the ICC has not solved. The Bemba trial in relation to the situation in theCentral African Republic did not stop violence by the Seleka faction, which remindsus that the ICC cannot solve deep-rooted social problems in a short period of time.138
However, the OTP prioritizes cases where violations are “grave”139 and these are pre-cisely cases where violence is prone to recur. ICC situations are some of the most pro-tracted cases of conflict in the world—a fact that makes the modest positiveconsequences we document all the more remarkable.The ICC had its ten-year anniversary in 2012. It has yet to gain consistent support
from major powers such as the United States, China, Russia, and India that wouldboost its resources and legitimacy. Although the ICC enjoys the support of 123 coun-tries, observers note that the court faces many practical challenges in its day-to-dayoperations, such as gathering evidence and conducting quality fact-finding.140 Inmany respects we agree. But its willingness to prosecute has contributed to percep-tions that impunity for egregious crimes against humanity is a diminishing option.The evidence suggests that this role has potential to save at least a few lives insome of the most violent settings in recent decades.
138. Glasius 2009b.139. ICC 2012, 6.140. See Schabas 2011; and Hamilton 2014.
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Supplementary Material
Supplementary material for this article is available at http://dx.doi.org/10.1017/S0020818316000114.
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